Preview
FILED: QUEENS COUNTY CLERK 01/17/2019 11:57 AM INDEX NO. 703668/2018
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/17/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
:
BILTWEL GENERAL CONTRACTOR . INDEX NO. 703668/2018
CORP.,
Motion Sequence #002
Plaintiff,
-against-
AFFIRMATION IN SUPPORT OF
D&K CONSTRUCTION CO., INC., NEW . NOTICE OF MOTION TO DISMISS
YORK CITY DEPARTMENT OF PLAINTIFF'S COMPLAINT
ENVIRONMENTAL PROTECTION, WITHOUT PREJUDICE
ARCH INSURANCE COMPANY,
Defendants.
DAVID P. LIPARI, ESQ., being an attorney duly admitted to practice law
before the Courts of the State of New York, and mindful of the penalties of perjury,
hereby affirm as follows:
1. I am an attorney with the law firm of Hedinger & Lawless, attorneys for
defendants, D&K Construction Co., Inc. ("D&K") and Arch Insurance Company
("Arch") (collectively the "defendants"). As such, I am fully familiar with the facts and
circumstances set forth herein.
LAWOFFICE
OF
HEDINGER
2. This Affirmation is respectfully submitted in support of D&K and Arch's
LAWLESS
motion to dismiss without prejudice the Verified Complaint of plaintiff, Biltwel General
Contractor Corp. ("Biltwel"), for failure to produce discovery in accordance with the
Court's So Ordered Stipulation dated December 10, 2018 and December 21, 2018
Preliminary Conference Order.
3. By way of background, D&K is a general contractor who performs work
for public and private projects in and around the State of New York. Pursuant to a job
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order contract with the New York City Department of Environmental Protection
("DEP"), D&K was issued work orders to perform various construction projects for the
DEP.
4. In furtherance of the job order contract, D&K was issued a work order by
the DEP for the Reconstruction of Dock Fender System at Owl's Head WWTP Project
(the "Project"). D&K entered into a subcontract with Biltwel for the Project. Biltwel
failed to satisfactorily perform its work under the Project and sought payment for work it
was not entitled to additional payment for.
5. Subsequently, on March 9, 2018, Biltwel commenced a lawsuit against
D&K and Arch who had issued a payment bond for the Project.
6. On May 16, 2018, Jeffrey A. Lhuillier, Esq., counsel for Biltwel, was
served with D&K and Arch's Interrogatories and Demand for Production upon Biltwel.
"A."
A copy of the letter and discovery is attached hereto as Exhibit
7. As no discovery was forthcoming from Biltwel, on July 10, 2018 I sent a
good-faith letter to Mr. Lhuillier requesting that Biltwel provide a response to the
discovery of D&K and Arch. Biltwel did not respond to the letter. A copy of the letter is
LAWOFF/CE
OF "B."
attached hereto as Exhibit
HEDINGER
& 8. On D&K and Arch provided a response to the
July 26, 2018, discovery
LAWLESS
propounded by Biltwel. A copy of the transmittal letter is attached hereto as Exhibit
"C."
The transmittal letter again requested that Biltwel provide a response to the
discovery propounded by D&K and Arch. Despite the letter and D&K and Arch
complying with their discovery obligations, Biltwel did not bother to respond to the
letter.
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9. Via letter of July 27, 2018, Arch forwarded additional discovery
responses. Biltwel again was asked to produce the outstanding discovery. A copy of the
"D."
letter is attached hereto as Exhibit The letter was ignored and no discovery was
produced.
10. As no discovery was forthcoming, on October 18, 2018 I again wrote Mr.
Lhuillier requesting that Biltwel provide a response to the discovery propounded by D&K
"E."
and Arch. A copy of the letter is attached hereto as Exhibit The letter further
provided that if responses were not provided within ten days, an application would be
made to the Court to compel discovery. Despite the further good-faith notice and D&K
and Arch complying with all their discovery obligations, Biltwel has not produced any
discovery or even responded to any of the good-faith letters.
11. Subsequently, D&K and Arch filed a motion to compel discovery
responses. On December 10, 2018, the return date of the motion, the parties entered into
a Stipulation So Ordered by Justice Modica. Pursuant to the Stipulation, Biltwel was to
produce the outstanding discovery within 30 days. A copy of the Stipulation is attached
"F."
hereto as Exhibit As such, D&K and Arch's motion to compel was withdrawn.
OF
LAWOFFICE 12. A preliminary conference was held on December 20, 2018. The
HEDINGER
& Stipulation Biltwel to produce the within 30 days of December 10,
requiring discovery
L4WLESS
2018 was memorialized in the Preliminary Conference Order dated December 21, 2018
"G."
attached hereto as Exhibit The Order states that "plaintiff shall produce discovery
responses to the demands propounded by D&K and Arch within 30 days of the 12/10/18
stipulation."
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13. The Order further provided in the event discovery was not produced that
D&K and Arch may file a motion to dismiss Biltwel's pleadings without prejudice
without further notice.
14. Despite the above, Biltwel has not produced any discovery responses.
15. Based upon the foregoing it is respectfully requested that Biltwel's
Verified Complaint be dismissed without prejudice.
Dated: New York, New York
January 17, 2019
David P. Lipari
LAWOFFICE
OF
HEDINGER
&
LAWLESS
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FILED: QUEENS COUNTY CLERK 01/17/2019 11:57 AM INDEX NO. 703668/2018 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/17/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS : BILTWEL GENERAL CONTRACTOR . INDEX NO. 703668/2018 CORP., Motion Sequence #002 Plaintiff, -against- AFFIRMATION IN SUPPORT OF D&K CONSTRUCTION CO., INC., NEW . NOTICE OF MOTION TO DISMISS YORK CITY DEPARTMENT OF PLAINTIFF'S COMPLAINT ENVIRONMENTAL PROTECTION, WITHOUT PREJUDICE ARCH INSURANCE COMPANY, Defendants. DAVID P. LIPARI, ESQ., being an attorney duly admitted to practice law before the Courts of the State of New York, and mindful of the penalties of perjury, hereby affirm as follows: 1. I am an attorney with the law firm of Hedinger & Lawless, attorneys for defendants, D&K Construction Co., Inc. ("D&K") and Arch Insurance Company ("Arch") (collectively the "defendants"). As such, I am fully familiar with the facts and circumstances set forth herein. LAWOFFICE OF HEDINGER 2. This Affirmation is respectfully submitted in support of D&K and Arch's LAWLESS motion to dismiss without prejudice the Verified Complaint of plaintiff, Biltwel General Contractor Corp. ("Biltwel"), for failure to produce discovery in accordance with the Court's So Ordered Stipulation dated December 10, 2018 and December 21, 2018 Preliminary Conference Order. 3. By way of background, D&K is a general contractor who performs work for public and private projects in and around the State of New York. Pursuant to a job 1 of 4 FILED: QUEENS COUNTY CLERK 01/17/2019 11:57 AM INDEX NO. 703668/2018 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/17/2019 order contract with the New York City Department of Environmental Protection ("DEP"), D&K was issued work orders to perform various construction projects for the DEP. 4. In furtherance of the job order contract, D&K was issued a work order by the DEP for the Reconstruction of Dock Fender System at Owl's Head WWTP Project (the "Project"). D&K entered into a subcontract with Biltwel for the Project. Biltwel failed to satisfactorily perform its work under the Project and sought payment for work it was not entitled to additional payment for. 5. Subsequently, on March 9, 2018, Biltwel commenced a lawsuit against D&K and Arch who had issued a payment bond for the Project. 6. On May 16, 2018, Jeffrey A. Lhuillier, Esq., counsel for Biltwel, was served with D&K and Arch's Interrogatories and Demand for Production upon Biltwel. "A." A copy of the letter and discovery is attached hereto as Exhibit 7. As no discovery was forthcoming from Biltwel, on July 10, 2018 I sent a good-faith letter to Mr. Lhuillier requesting that Biltwel provide a response to the discovery of D&K and Arch. Biltwel did not respond to the letter. A copy of the letter is LAWOFF/CE OF "B." attached hereto as Exhibit HEDINGER & 8. On D&K and Arch provided a response to the July 26, 2018, discovery LAWLESS propounded by Biltwel. A copy of the transmittal letter is attached hereto as Exhibit "C." The transmittal letter again requested that Biltwel provide a response to the discovery propounded by D&K and Arch. Despite the letter and D&K and Arch complying with their discovery obligations, Biltwel did not bother to respond to the letter. 6099/32600c 2 2 of 4 FILED: QUEENS COUNTY CLERK 01/17/2019 11:57 AM INDEX NO. 703668/2018 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/17/2019 9. Via letter of July 27, 2018, Arch forwarded additional discovery responses. Biltwel again was asked to produce the outstanding discovery. A copy of the "D." letter is attached hereto as Exhibit The letter was ignored and no discovery was produced. 10. As no discovery was forthcoming, on October 18, 2018 I again wrote Mr. Lhuillier requesting that Biltwel provide a response to the discovery propounded by D&K "E." and Arch. A copy of the letter is attached hereto as Exhibit The letter further provided that if responses were not provided within ten days, an application would be made to the Court to compel discovery. Despite the further good-faith notice and D&K and Arch complying with all their discovery obligations, Biltwel has not produced any discovery or even responded to any of the good-faith letters. 11. Subsequently, D&K and Arch filed a motion to compel discovery responses. On December 10, 2018, the return date of the motion, the parties entered into a Stipulation So Ordered by Justice Modica. Pursuant to the Stipulation, Biltwel was to produce the outstanding discovery within 30 days. A copy of the Stipulation is attached "F." hereto as Exhibit As such, D&K and Arch's motion to compel was withdrawn. OF LAWOFFICE 12. A preliminary conference was held on December 20, 2018. The HEDINGER & Stipulation Biltwel to produce the within 30 days of December 10, requiring discovery L4WLESS 2018 was memorialized in the Preliminary Conference Order dated December 21, 2018 "G." attached hereto as Exhibit The Order states that "plaintiff shall produce discovery responses to the demands propounded by D&K and Arch within 30 days of the 12/10/18 stipulation." 6099/32600c 3 3 of 4 FILED: QUEENS COUNTY CLERK 01/17/2019 11:57 AM INDEX NO. 703668/2018 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/17/2019 13. The Order further provided in the event discovery was not produced that D&K and Arch may file a motion to dismiss Biltwel's pleadings without prejudice without further notice. 14. Despite the above, Biltwel has not produced any discovery responses. 15. Based upon the foregoing it is respectfully requested that Biltwel's Verified Complaint be dismissed without prejudice. Dated: New York, New York January 17, 2019 David P. Lipari LAWOFFICE OF HEDINGER & LAWLESS 6099/32600c 4 4 of 4